Breastfeeding rights and obligations

So how can employers help, and why should they? The World Alliance for Breastfeeding Action states that “Making your workplace parent-friendly can lead to many benefits for employers, such as increased productivity, retention and lower healthcare and insurance costs." In addition, it calls on employers to:

• Develop parent-friendly workplace policies that promote and support breastfeeding.
• Provide time, space/proximity and support for breastfeeding workers.
• Promote positive attitudes and zero discrimination at the workplace.
• Implement social protection measures for all workers, including in the informal sector.
• Work with trade unionists and advocates to inform workers of their rights.

In a study by Cohen, Mrtek and Mrtek, the researchers demonstrated across two employee populations that where a child was breastfed, there was a reduction in absenteeism due to the baby being sick less often and less severely.

Despite the benefits that family-friendly policies can have for employees and employers alike, more and more countries are bringing in statutory obligations and rights in relation to breastfeeding in the workplace that employers would be wise to be aware of. Failure to incorporate these local requirements into your employment practices and policies may give rise to claims in relation to refusing a statutory right as well as discrimination, which was highlighted in our recent Global HR News in relation to a landmark case in Australia.

Provisions in terms of breastfeeding rights, protections and employer obligations vary from location to location. This article provides a comparison of these rights and obligations in a number of locations globally.

According to the World Health Organization (WHO), the European Region continues to have some of the lowest rates of exclusive breastfeeding of all WHO regions; however, there are some highlights.

In Norway, up to 80% of infants are still exclusively breastfed at six months of age. Could this be in part because employees in Norway are entitled to time off for breastfeeding of up to one hour per day? This hour is paid by the employer where the employee has agreed to working hours of at least seven on the given day and where the child is under 12 months of age. In addition, pregnant and breastfeeding women must be provided a suitable place to rest and lie down.

While several European countries provide similar rights to those found in Norway, UK legislation falls slightly short, with no statutory right to breastfeeding breaks. That said, employees do have the right to health and safety protection, flexible working hours, protection from discrimination and harassment and the provision of rest facilities. Therefore, employers would be wise to consider requests made by breastfeeding employees seriously and implement reasonable adjustments accordingly, as demonstrated in the case of McFarlane and another v EasyJet Airline Company Ltd, in which EasyJet were required to pay two employees compensation for injury to feelings of £8,750 plus interest and £12,500 plus interest, respectively, on the grounds of indirect sex discrimination. In this case, EasyJet failed to carry out its own risk assessment of the situation, ignored the advice of four different GPs and failed to arrange for the employees to be assessed by occupational health.

In Germany, breastfeeding rights are contained in the Maternity Protection Act (MuSchG). Parents returning from maternity leave who are still breastfeeding are entitled to breaks to breastfeed in addition to usual breaks such as for lunch until the child reaches 12 months of age. Breaks can be taken in two periods of half an hour or one period for an hour. Where the working day is more than eight hours, the employee is entitled to two breastfeeding breaks of 45 minutes or one break of at least 90 minutes if there are no breastfeeding facilities near the workplace. During these breaks, the employee is entitled to receive their average salary and it is not permitted to request that the employee make up the time. Working time limits are in place for breastfeeding employees, with a restriction on daily hours of no more than 8.5 hours and a restriction of 90 hours in a two-week period. Breastfeeding employees are also excluded from working overnight.

In France, by statute, employees are entitled to one hour per day for breastfeeding, up to the child’s age of 12 months. The hour is split into two lots of 30 minutes each, to be used in each half of the employee's working day. However, where the employer provides a dedicated breastfeeding room, within or close by the working premises, the periods are reduced to 20 minutes each. The breaks are unpaid unless supplemented by an applicable collective agreement. The obligation to provide facilities linked to breastfeeding depends on the number of employees in the organisation. For employers with less than 100 employees, there is no obligation to provide breastfeeding facilities; however, the employee must be able to rest and lie down. In contrast, employers with 100 or more employees may be required by the Labour Inspector to install breastfeeding facilities within or nearby the working premises, with the facilities provided meeting certain criteria. 

In Canada, federally regulated employees have an express statutory right under the Canada Labour Code to take any unpaid breaks necessary to breastfeed or express breast milk.

For provincially regulated employees, there is no uniform right to paid breastfeeding breaks; however human rights legislation (Policy on Pregnancy & Human Rights in the Workplace) recognises an employee’s right to request accommodations in relation to breastfeeding on family care and sex discrimination grounds. The employer’s duty requires the accommodation of pregnancy-related needs (which includes breastfeeding) unless the accommodation will cause undue hardship. In relation to breastfeeding, the policy states that employees who breastfeed or express/pump breast milk should be provided with accommodation for this purpose. Accommodation can include:

• Providing a suitable, clean place to breast-feed or express milk and to store milk.
• Providing longer or extra breaks for the purpose of breast-feeding or expressing milk.
• Allowing for the extension of maternity leave.
• Allowing for alternative work arrangements.

In Brazil, where maternity leave is provided for 17 weeks, employees are entitled to paid breastfeeding breaks of up to 60 minutes per day (which can be taken in two breaks of 30 minutes) until the child is six months of age. Comparable provisions apply in Colombia, although where breastfeeding continues after the age of six months and up to 24 months, employees are also entitled to a single 30-minute paid break. In Chile, paid breastfeeding breaks are provided until the child reaches 24 months of age, and under the Labor Code employers of 20 or more female staff are required to provide childcare rooms and facilities.

Across Asia, there are varying practices. Hubs for international employers, such as Australia and Singapore, do not have any mandated obligations on employers to provide breastfeeding breaks. While Singapore doesn’t require breastfeeding breaks, there is some consideration for breastfeeding parents in the Code on Accessibility in the Built Environment 2019, which requires offices and business parks with a gross floor area (GFA) of 5,000 m² or more to provide at least one lactation room. Under the Code, lactation rooms must ensure privacy and comfort and be equipped with appropriate facilities to support breastfeeding or expressing milk. Clear signage and information must be displayed to enable users to easily identify and locate the lactation rooms. For employers in larger office environments, speaking to business management and signposting employees to such facilities would be a beneficial step.

While employers in Australia are also not required to provide lactation breaks, many do, and Australian law does require that an employee is not stopped from breastfeeding or expressing milk, that employers must consider reasonable changes, including breaks or flexible working and that employees can make a flexible work request. It is worth noting that refusing an employee's request for arrangements to facilitate breastfeeding while at work is typically unlawful on the basis of discrimination. This may include not providing reasonable facilities, not allowing an employee to arrange their own breaks in order to breastfeed or express milk or telling an employee they must wean their baby prior to returning to work.

In contrast, the Indian Maternity Benefit Act 1961 provides for two nursing breaks, in addition to the normal rest break, until the child is 15 months old without any loss in pay. The Philippines also has a strong legal framework of workplace rights for breastfeeding parents. The Expanded Breastfeeding Promotion Act of 2009 requires employers to provide lactation stations, lactation breaks, lactation policies and awareness campaigns. In a break from the norm, the legislation provides detail as to the specifics of these obligations. The law references that lactation breaks should be “not less than 40 minutes” for lactation periods within an eight-hour working day, but it also grants flexibility depending on the parent's needs. Lactation stations should be a clean, well-lit, and private space with comfortable seating, flat surfaces, power outlets and refrigeration or cooling facilities.

In summary

The snapshot above underscores the significant variation in how breastfeeding rights and employer responsibilities are approached around the world. It also serves as a valuable reminder that supportive workplace policies for breastfeeding can be a powerful differentiator, helping organisations attract and retain top talent.

For further information, please contact your usual Crowe contact.